Molter, J.
Matthew H. Thomas Davis pled guilty to four theft‐related charges in exchange for a more lenient sentence. As part of his written, three‐page plea agreement with the State, which both he and his attorney signed, he waived his right to appeal that sentence. Davis seeks to appeal his sentence anyway, arguing the trial court’s statements before accepting his change of plea misled him to believe that, contrary to his written agreement, he was retaining his right to appeal his sentence. But if the trial court’s statements before accepting Davis’s guilty plea misled him to change his plea, his remedy is to vacate his conviction through post‐ conviction proceedings, not to nullify his appeal waiver through a direct appeal. We therefore dismiss his appeal.
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Davis argues we should nullify his appeal waiver, and his transfer petition identifies a single issue for our consideration: “Did Davis knowingly and voluntarily waive his right to appeal his sentence when the court gave contradictory advisements in violation of his due process rights?” Pet. to Trans. at 2. Because we cannot nullify Davis’s appeal waiver through this direct appeal based on the claim that the waiver was not knowing and voluntary, we must dismiss the appeal. However, Davis may still seek relief through post‐conviction proceedings.
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Here, both Davis and his defense counsel signed a plea agreement with the State, which the trial court accepted. In exchange for a lower ceiling on his sentence, Davis agreed to waive his “right to appeal any sentence imposed by the Court, including the right to seek appellate review of the sentence pursuant to Indiana Appellate Rule 7(B), so long as the Court sentence[d] [him] within the terms of th[e] plea agreement.” Because the trial court sentenced Davis within the terms of the plea agreement, his appeal waiver applies here. And as in Creech, Davis “does not claim that the language of the plea agreement was unclear or that he misunderstood the terms of the agreement at the time he signed it.” 887 N.E.2d at 76. In other words, he does not claim that when both he and his attorney signed the agreement waiving his appeal, he misunderstood what he was agreeing to or that his agreement was involuntary.
Because Davis’s appeal waiver is unambiguous, this case is not like the two per curiam opinions the dissent cites, where the written appeal waivers the State drafted were ambiguous as to whether they covered only appeals from the convictions or from the sentences too. Johnson v. State, 145 N.E.3d 785, 786 (Ind. 2020) (per curiam); Williams v. State, 164 N.E.3d 724, 725 (Ind. 2021) (per curiam). In those situations, we construe the ambiguity against the State as the agreement’s drafter. State v. Smith, 71 N.E.3d 368, 371 (Ind. 2017) (“Ambiguities are construed against the drafter; in this case that is the State, which prepared the plea agreement.”).
Notwithstanding the unambiguous appeal waiver, Davis argues the trial judge later misled him by misadvising him that he would retain the right to appeal his sentence, so we should disregard his appeal waiver as not knowing and voluntary. But we cannot do so through this direct appeal.
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A defendant claiming a guilty plea was involuntary because the defendant was not advised (or was advised incorrectly) about the rights being waived may obtain post‐conviction relief to vacate the conviction and set aside the guilty plea only if the defendant can “prove that any erroneous or omitted advisement, if corrected, would have changed [the] decision to enter the plea.” Holliday v. State, 498 N.E.2d 1239, 1240 (Ind. 1986). “A plea entered after the trial judge has reviewed the various rights which a defendant is waiving and made the inquiries called for in the statute is unlikely to be found wanting in a collateral attack.” White v. State, 497 N.E.2d 893, 905 (Ind. 1986). But “defendants who can show that they were coerced or misled into pleading guilty by the judge, prosecutor or defense counsel will present colorable claims for relief.” State v. Moore, 678 N.E.2d 1258, 1266 (Ind. 1997). One way a judge may mislead a defendant into pleading guilty is to mistakenly advise that the defendant is retaining appeal rights that have been waived in a plea agreement. See, e.g., Cornelious v. State, 846 N.E.2d 354, 360 (Ind. Ct. App. 2006), trans. denied; Lineberry v. State, 747 N.E.2d 1151, 1157 (Ind. Ct. App. 2001).
We do not analyze whether a plea agreement’s appeal waiver was knowing and voluntary in light of a trial court’s misstatement separate from whether the guilty plea was knowing and voluntary. It is all or nothing. Either the guilty plea was knowing and voluntary despite the trial court’s misadvisement, in which case the plea agreement on which the guilty plea was based remains fully enforceable; or the guilty plea resulted from confusion about the terms in the written plea agreement, in which case the conviction must be vacated (if the defendant wishes), and all the plea agreement terms would be unenforceable.
That is because the plea agreement is a bargain between the defendant and the State, Archer, 81 N.E.3d at 215–16, and the defendant cannot retain the benefits of the bargain (a more lenient sentence) while escaping its burdens (the promise not to appeal for an even more lenient sentence). We cannot renegotiate the parties’ deal either. While trial judges have discretion to accept or reject plea agreements, courts are not empowered to change any of the terms. Creech, 887 N.E.2d at 77 n.3 (explaining that trial courts cannot accept a guilty plea and then modify the plea agreement even if the modification is more favorable to the defendant).
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The dissent understands this analysis as holding that “Davis may not pursue an appeal of his sentence even if he can prove he did not knowingly and voluntarily waive his right to do so.” Post, at 1 (Goff, J., dissenting) (emphasis added). But we are holding just the opposite—if Davis can prove in post‐conviction proceedings that he did not knowingly and voluntarily waive his right to appeal, then his conviction can be vacated, and he would regain not just the right to appeal any sentence, but also every other right he waived before pleading guilty. By declining to skip the proof step, we are simply adhering to our precedent, which establishes that a defendant’s claim that a guilty plea was based on a misunderstanding of the rights being waived presents a factual question to be determined through post‐conviction proceedings. Holliday, 498 N.E.2d at 1240; White, 497 N.E.2d at 905.
To be sure, the remedy of setting aside the conviction would result in Davis invalidating the entire plea agreement rather than allowing him to retain its benefits while escaping its burdens. Post, at 5. But that is how our Court has long handled misadvisements or omissions which mistakenly lead defendants to change their pleas from not guilty to guilty. For example, if a defendant’s waiver of a jury right is not knowing and voluntary, we set aside the conviction through post‐conviction proceedings, and the parties are returned to the status quo ante. See Ponce v. State, 9 N.E.3d 1265, 1270 (Ind. 2014) (reviewing post‐conviction proceedings and explaining that the failure to advise a criminal defendant of his constitutional rights prior to accepting a guilty plea will result in reversal of the conviction). We do not allow the defendant to retain the beneficial parts of the plea agreement—like an agreement to dismiss some charges or cap a sentence—while regaining other rights the defendant had previously waived, like a right to a jury trial.
Finally, we should not treat appeal waivers like illegal contract provisions, as the dissent proposes in reliance on Lee v. State, 816 N.E.2d 35, 40 (Ind. 2004), a case in which our Court declined to invalidate an illegal sentence to which the defendant agreed in a plea agreement after concluding the defendant should be held to his bargain. Since we have held these appeal waivers are legal, Creech, 887 N.E.2d at 74, we should not treat them as if they are illegal. And even for an illegal provision in a contract, a court may only sever the provision if the parties would have entered the bargain without the illegal portion of the original agreement. Lee, 816 N.E.2d at 39. We have no way of making that assessment here without a factual record related to the parties’ negotiations.
In sum, Davis’s written plea agreement with the State, which both he and his attorney signed, unambiguously waived his right to appeal his sentence. If Davis’s guilty plea was nevertheless not knowing and voluntary because the trial judge’s misstatements misled him about which rights he was waiving, then Davis may demonstrate that through post‐ conviction proceedings, and his conviction can be set aside. That would restore his right to appeal any sentence and all other rights he waived through his plea agreement and guilty plea. But we cannot decide in the first instance on a direct appeal whether Davis is able to make that showing.
For these reasons, we dismiss Davis’s appeal.
Massa and Slaughter, JJ., concur.
Goff, J., dissents with separate opinion in which Rush, C.J., joins.
Goff, J., dissenting.
The Court holds today that Matthew Davis may not pursue an appeal of his sentence even if he can prove he did not knowingly and voluntarily waive his right to do so. The only course of action left open to him is to seek to vacate his guilty plea altogether in postconviction. I would hold instead that the appeal waiver is unenforceable because Davis was affirmatively advised by the trial court, before entry of his guilty plea, that he would retain the right to appeal. And, because the appeal waiver can be severed from the rest of Davis’s plea agreement, he should be allowed his appeal, rather than having to make an “all or nothing” challenge to his plea. Allowing Davis to appeal is the only result which fully preserves his unwaived right to do so.
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Relying on the “knowing and voluntary” requirement, this Court has twice recently invalidated appeal waivers. In Johnson, there was no knowing and voluntary waiver of a sentencing appeal because the written waiver language was too vague and general. 145 N.E.3d at 786–87. Likewise in Williams, where the trial court failed to clarify whether the defendant meant to waive his right to appeal his sentence in particular. 164 N.E.3d at 725. All the more then, when a trial court outright tells a defendant at the plea hearing, without correction, that the terms of his agreement will preserve his right to appeal, there can be no knowing and intentional waiver. See Ricci v. State, 894 N.E.2d 1089, 1093–94 (Ind. Ct. App. 2008) (finding no valid waiver because the trial court clearly stated at the plea hearing that the defendant’s agreement allowed an appeal). Such an unambiguous statement uttered by the trial court is even more troubling than ambiguous written terms.
Both Johnson and Williams allowed the defendants’ appeals to go forward because their waivers were invalid. 145 N.E.3d at 787 (remanding for a belated appeal); 164 N.E.3d at 725 (affirming the sentence). The same outcome is appropriate here. However, the Court holds otherwise on the grounds that Davis’s plea agreement must be taken “all or nothing.” Ante, at 7. Thus, the majority opinion explains, Davis “cannot retain the benefits” of his plea agreement “while escaping” the appeal waiver condition. Id. Instead, he must challenge his guilty plea itself as unknowing or involuntary. Id. at 7–8. The Court indicates that this result follows from treating Davis’s plea agreement as a contract. Id. at 5, 7–8. The decision relies on Seventh Circuit precedent holding that “[w]aivers of appeal must stand or fall with the agreements of which they are a part. If the agreement is voluntary, . . . then the waiver of appeal must be honored. If the agreement is involuntary or otherwise unenforceable, then the defendant is entitled to appeal.” United States v. Wenger, 58 F.3d 280, 282 (7th Cir. 1995). With the greatest respect to the Court of Appeals for the Seventh Circuit, Indiana’s constitutional right to appeal requires “a separate, independent analysis from this Court.” See Marshall v. State, 117 N.E.3d 1254, 1258 (Ind. 2019). And our Court has its own precedents concerning the enforcement of plea agreements.
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Admittedly, the record does not show whether “the parties would have entered the bargain absent” the appeal waiver provision. See Lee, 816 N.E.2d at 39 (internal quotation and citation omitted). But this is not fatal to Davis’s claim. As “helpful” as principles of contract law may be, they are “not necessarily determinative” in the plea agreement context because “important due process rights are involved.” Id. at 38. And contract law is not, ultimately, the most important basis for concluding that Davis is entitled to appeal. I cannot embrace the rule announced today principally because it is not “adequate to preserve the defendant’s rights.” See United States v. Bushert, 997 F.2d 1343, 1353 (11th Cir. 1993) (adopting the remedy of severing the invalid waiver). It undermines the principle that an appeal waiver should be enforced only if it was made knowingly and voluntarily. See Creech, 887 N.E.2d at 74. Under the majority’s approach, Davis must invalidate his entire plea bargain, exposing himself to the risk of additional or more serious charges, in order to assert his right to appeal. Mandating this procedure severely burdens his exercise of a right which he never properly waived. Conversely, even if the State suffers an injustice from facing an appeal, it lies in the State’s power to avoid this outcome in the future by objecting whenever trial courts misadvise defendants on their right to appeal. And, notably, the State itself argued for severance in circumstances similar to this case in Crowder v. State. 91 N.E.3d 1040, 1049, 1052 & n.3 (Ind. Ct. App. 2018). The only way forward that fully preserves Davis’s right to appeal is to allow him that appeal. Today’s decision of the Court, by contrast, undermines that right in cases where it has not been knowingly waived. Therefore, I respectfully dissent.
Rush, C.J., joins.